Friday, July 01, 2016

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth. The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others.... It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).